Surrogate not legally a baby’s mother, judge rules

A Saskatchewan judge has ruled that a woman who gave birth to a baby girl in 2009 is not actually the child’s mother, in a decision that exposes the gap between legislation and reality in modern parenthood.

“It’s tough for the legislators to keep up, and this is a case where it may be lagging,” said Rich Gabruch, lawyer for “John” and “Bill,” the same-sex couple who are now properly called the parents of “Sarah,” who was conceived with John’s sperm and an ovum from an anonymous donor, and carried to term by “Mary.”

“The way we’re reading this decision is that the other father can now be listed on [the birth certificate],” Mr. Gabruch said. “The next step would be to list [Bill] specifically,” although he acknowledged the case has moved into “uncharted waters.”

In granting John and Bill’s request, supported by Mary, to remove Mary’s name from Sarah’s birth certificate, Madame Justice Jacelyn Ann Ryan-Froslie of the province’s Court of Queen’s Bench, noted that the law defines a “mother” as the woman who delivered a child, and presumes she is also a parent, which is no longer always true.

Being a parent is an important legal designation, she wrote, and it does not apply to Mary, who surrendered all parental rights to John and Bill after Sarah’s birth. Among the lifelong rights and obligations that come with parentage are that a Canadian parent may confer citizenship regardless where the child is born; a parent must consent to any future adoption; and a parent may register a child in school or obtain documentation, such as a passport or health card, on behalf of the child.

“It is clear from the definition of ‘mother’ contained in The Vital Statistics Act, 2009, that Mary, the gestational carrier, is Sarah’s mother for the purposes of that Act as she is the woman from whom Sarah was delivered. Naming her as Sarah’s mother on the registration of live birth raises a presumption that she is also Sarah’s biological mother,” the judge wrote.

“In this case, I am satisfied on a balance of probabilities that Mary, the gestational carrier, is not Sarah’s biological mother. I am also satisfied neither [John nor Bill] nor Mary ever intended that Mary would assume any parental rights or obligations with respect to Sarah. As such, a declaration that Mary is not Sarah’s mother is warranted.”

As adoption moved out of the cultural shadows in recent decades, the concept of “mother” was split, in colloquial language if not the law, into “biological mother” and “adoptive mother.” But the rise of reproductive science has further split the biological mother category into “egg donor” and “gestational carrier.” Add to this the new legality of same-sex marriage and adoption, and the old legal categories no longer seem to grasp the facts.

Provinces have moved to follow the changes, but the pace is slow. In the 1990s, legislatures across the country moved to abolish the notion of illegitimacy. From then on, a person’s status as a child of their parents did not depend on being born into wedlock. Likewise, the legal presumption that the husband of the mother is the father of the child has fallen out of favour, as it fails in the case of a married surrogate.

Alberta, for example, has a rule that allows an egg donor to be declared the mother of a child if the gestational carrier consents after birth. But in Sarah’s case, the egg donor was anonymous.

Mr. Gabruch said it is unlikely his clients would have won if Sarah had come from Mary’s own ovum, rather than a donor’s.

“I don’t know if the judge would have taken the step that the judge took,” he said. “There would have been a greater risk for us, in making the application, of being unsuccessful.”

Birth certificates are routinely changed in all provinces, to correct mistakes or reflect adoptions, and declarations of parentage are relatively common, but are usually about paternity. Declarations of non-maternity, such as this one, are very rare.

Saskatchewan has no precedents, but in in 2002, an Ontario judge declared that a gestational carrier was not the mother of a child, largely because the carrier gave her consent.

In 2000, a Manitoba judge ruled in the case of a woman who was a gestational carrier for her sister-in-law’s ovum, fertilized with her brother’s sperm. The judge refused to declare the sister-in-law to be the mother of the as yet unborn child, and declined to make an order about paternity to avoid the uncomfortable outcome of siblings being listed as parents. And in 2007, the Ontario Court of Appeal declared a child to have three parents under the law: her biological father and mother, and her mother’s same-sex partner, all of whom were actively involved in the child’s life.